Previously Protected Communications May Become Part of CEQA Records

Monday, September 09, 2013 12:00 am
 
Land Use Law Report, Volume 41, Number 9
 

By: A. Catherine Norian, Esq. and Elisa Paster, Esq.

On July 8, 2013, California’s Fifth District Court of Appeal held that communications conducted prior to project approval between an agency and applicant under the California Environmental Quality Act (CEQA) should be included in the project’s administrative record—but that such communications occurring after project approval may be protected. If it survives challenge, this decision— Citizens for Ceres v. The Superior Court of Stanislaus County, F065690 (July 8, 2013)— createsa conflict with the Third District Court of Appeal’s decision in California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th 1217, on which project proponents and lead agencies have been relying for years. California Oak Foundation held that, under appropriate circumstances, pre-approval communications may be protected from inclusion in the record.

If it stands, Citizens for Ceres creates questionable precedent based, as it is, on a rather unique perception of the rigors and requirements of the CEQA process, the efforts that informed lead agencies and developers make to prepare legally sufficient environmental analyses under CEQA, and the factors that underlie an agency’s ultimate approval or denial of a proposed project. In the views of many practitioners, the decision mischaracterizes the CEQA process.

Facts: In Citizens for Ceres, the petitioner challenged the city of Ceres’ decision to withhold from the administrative record communications between the city and the developer based on attorney-client privilege or the attorney work product doctrine. The city claimed that these protections h[..]

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